This is meeting 25 of the Standing Committee on Justice and Human Rights. Today is Tuesday, May 26, 2009. This is a special meeting called to study the desirability of declaring certain groups criminal organizations.

On today's agenda you will note that we have before us a number of witnesses to assist us in our study. I'll go through the list.

Representing the Sûreté du Québec, we have Serge Vandal, who is the officer in charge of the organized crime intelligence unit; Francis Brabant, legal counsel; and we have Jocelyn Latulippe. Welcome back.

Representing the Public Prosecution Service of Canada we have Christopher Mainella.

We also have Kent Roach, Pritchard-Wilson chair in the faculty of law, University of Toronto.

The Criminal Intelligence Service Canada of the RCMP is represented by Gary Shinkaruk, officer in charge of Project E-Pandora. Also, we have Detective Sergeant Len Isnor, national intelligence coordinator. Finally, we have Superintendent Michel Aubin of the federal and international operations of the Royal Canadian Mounted Police.

I welcome all of you.

I believe we have a speaking order agreed to. Most of you know that you have ten minutes to present, and then we open the floor to questions. Please don't feel that you have to use up all of the ten minutes. Generally I find that the most productive part of the meeting is when we get a chance to ask you questions and ferret out the information we need to provide a report.

Good morning, and thank you for inviting us here to speak today about this important issue. I had the opportunity to appear before your committee on April 1 to discuss Bill C-14, and I appear before you again today on behalf of the RCMP organized crime program. Fighting organized crime, as we previously testified, is a strategic priority for the RCMP. As a partner in the fight against organized crime, we appreciate the fact that the committee has undertaken this study.

Many of our federal, provincial, and municipal units of the RCMP prioritize the investigation of organized crime where it intersects with their respective areas of responsibility. As well, through our combined forces special enforcement units, the investigative teams target criminal organizations that represent the highest level of harm in their communities.

The position of the RCMP in relation to listing criminal organizations is that we are supportive of this move. We believe that such a measure would increase our efficiency in the fight against organized crime and contribute to building safer communities. I must add that the RCMP believes that any listing of a criminal organization should be done through a criminal trial process.

While my colleagues from CISC and the Sûreté du Quebec will discuss details specific to the Hells Angels, the RCMP's view is that this committee should consider applying this concept across a wider range of well-established criminal organizations. Prior testimony before this committee stated that organized crime is present all over Canada, as well as in many other countries.

Our greatest concern is that there are well-established organizations that have been in existence for decades, if not longer, and that continue to have a impact on all Canadians. Frequently, these organizations rely on the use of intimidation, violence, and corruption of public officials as part of the tools of their trade.

Many of these organizations have become transnational in nature, not only because they peddle their illegal wares in other countries, but also because they work with established cells in other countries to facilitate their activities. Furthermore, in many cases, improvements in technology and globalization have allowed these organized crime groups to remain one step ahead of law enforcement.

An emerging trend that is of concern to us is that organized crime groups are now moving parts of their operations to countries that may not have the legal and/or the law enforcement framework or capacity to adequately address a threat.

Beyond the well-documented violence and crime that threaten the safety and emotional well-being of our citizens, the economic impact of organized crime on our country is staggering and affects everyone. As an example, auto theft alone costs us $1 billion. These are real costs that are incurred by private businesses, which then pass them on to Canadian consumers through higher insurance premiums and banking fees.

I have another example. The World Customs Organization and the Organisation for Economic Co-operation and Development estimate that 7% to 10% of global trade is derived from counterfeit products alone.

In some instances, organized crime has contributed to the destabilization of governments and infrastructure of foreign countries.

To be more specific, currently in Canada when the RCMP engages in an investigation of a criminal organization, we have to structure the investigation, the case management, and disclosure into three areas: one, proving that a substantive offence or offences have taken place; two, proving that the group itself is a criminal organization; and three, proving the link between the individual or individuals and the organization itself.

Our experience with the legislation has shown that it can be of value when it is applied. An example I would like to mention is Project Colisée in Montreal, which targeted or focused on the activities of traditional organized crime. The investigation lasted five years and resulted at the very end, or very recently, in the top six members of traditional organized crime pleading guilty.

More particularly, these individuals pled guilty to offences such as benefiting from the activities of criminal organizations or participating in the offences of a criminal organization. Since then, a number of other individuals also have pled guilty. However, to reach these results, the Colisée investigation required a tremendous amount of work, resources, and time dedicated to the investigational and disclosure preparation stages. This was required to demonstrate the existence of the criminal organization itself over and above the substantive offences investigations.

The cost of this investigation right up to 2006 was around the $40 million mark. Under the current legislation, if we were to go after this same organization, we would have to repeat much of the same work. This operation clearly reveals the applicability of the current legislation. Having to deploy significant resources to meet the three elements of the investigation would be very challenging and very taxing to our resources. In our view, this would result in a duplication of large amounts of work that has already been completed through the investigation and preparation disclosure.

The threat of organized crime is a challenge not only for Canada, but one that is faced by many other countries. Just as we are doing here, other countries are also looking at ways to address the same issue. As an example, approximately a month ago I met with an assistant commissioner from the South Australia Police, who explained that Australia had recently enacted legislation to better deal with organized crime, to provide courts and law enforcement with better tools to pre-empt the activities of the members of criminal organizations.

I'm not at liberty, and I don't think it would be appropriate for me to speak on the details of their legislation; however, we could facilitate this committee meeting, by video link or whatever, with the resources from Australia.

In conclusion, the RCMP is of the view that the listing of criminal organizations is a measure that would be of great assistance to law enforcement in our fight against organized crime. The current reality facing the law enforcement community is that organized crime is evolving rapidly and expanding its influence, and we must find ways to quickly adapt.

Addressing this reality will require bold moves and prompt action if we wish to gain ground on these criminals. The RCMP is more than willing to be a participant in the elaboration of appropriate measures to address this problem, while at the same time ensuring that the rights of all individuals, as guaranteed through our charter, are respected. The tentacles of organized crime have now extended beyond traditional boundaries and reach more and more into legitimate business. Any new tools that lawmakers can provide to the law enforcement community, such as the listing or scheduling of criminal organizations, to enhance our ability to investigate, disrupt, and prosecute these individuals and organizations would be welcome.

Mr. Chairman, honourable members of the Justice Committee, my name is Serge Vandal and I am a Lieutenant and Operational Assistant with the Criminal Intelligence Projects Service at the Criminal Intelligence Branch of the Sûreté du Québec. I am appearing today as an expert on criminal biker gangs, at the request of the Canadian Association of Chiefs of Police. My expertise in this area has been considered to be just that by various courts of law before which I have been called to testify in recent years.

With me today is Chief Inspector Jocelyn Latulippe, from the Sûreté du Québec, who is the Joint Chair of the Organized Crime Committee of the CACP, as well as Mr. Francis Brabant, Legal Advisor to the Assistant Director General of Criminal Investigations at the Sûreté du Québec. I would also like to take this opportunity to convey the greetings of the President of the CACP, Mr. Steven Chabot, who is the Assistant Director General with responsibility for the overall criminal investigations function at the Sûreté du Québec.

Under a Memorandum of Understanding with the various police services, the Criminal Intelligence Branch of the Sûreté du Québec is responsible for collecting and analyzing information relating to criminal biker gangs, as active sources of organized crime across Quebec. So, I am an enthusiastic participant in this study that has been undertaken by the Committee, with a view to seeing certain groups declared criminal organizations.

I think it is appropriate to state, right at the outset, that I share the concerns expressed by Chief Inspector Jocelyn Latulippe when he appeared before this Committee. In order for the various parts of our judicial system to work as they should, there is now a need to find a solution which would reduce the endless proceedings aimed at establishing the criminal nature of an organization, when that exercise has already been carried out successfully.

Our position on this—and we are certainly in favour of developing a list and automatically including at least five recognized criminal biker groups on that list—rests on a rationale that addresses three separate themes.

First of all, we will talk about the context in which these criminal organization came to set up shop here in Canada and the disputes generated by criminal expansion plans. Second, we will outline the method of operation of such organizations, and finally, look at the question of membership in an organization as a tool of intimidation.

In terms of the establishment here in Canada of biker gangs that operate on an international scale, it was only in the late 1970s that Canada saw the internationalization of regionally-based biker gangs. It was through the merger of existing gangs that international organizations gradually set up operations here in Canada. Taking advantage of dissent within the Satan's Choice biker gang, the Outlaws group, originally from the United States, became the first biker gang of international scope to have an official base in Canada. That breakthrough took place in the summer of 1977 with its establishment in Ontario and Quebec. Composed of members of Satan's Choice, that group was to completely disappear from Quebec in the early 1990s following a bloody offensive against them by the Hells Angels.

The American Hells Angels organization, founded in 1948, made its official entry into Canada in December of 1977. Bringing in 30 or so members from the Popeyes, they formed their first Canadian chapter in Montreal. That organization, which now has branches in six Canadian provinces, is also responsible for the disappearance of the Quebec Rock Machine gang. That criminal group, which was established in September of 1990, would be responsible for the arrival in Canada of the Bandidos ten years afterwards.

When the Rock Machine saw its organization weakening, following some arrests as well as multiple attacks against its members by the Hells Angels, it decided to approach the Bandidos with a view to merging with that international organization.

So it was that in November of 2000 the Rock Machine and the Bandidos officially formed an alliance. However, that attempt to establish themselves in Quebec was to be short-lived. Indeed, less than two years after it became a reality, the two Quebec chapters were dissolved in June of 2003.

Through the violence provoked by their expansion plans, the Hells Angels in Quebec had achieved their goal: to retain supremacy in Canada among criminal biker gangs. Recently, the American biker organization the Mongols has shown an interest in expanding into Canada. Recent intelligence supports that assertion. Therefore, in the wake of this brief overview of these criminal organizations, it is very important for the Committee to understand the need to target a limited number of international biker gangs through legislative amendments.

I would now like to move on to address the criminal biker gangs themselves and their sense of democracy. Beyond the rituals and certain observable characteristics associated with its method of operation, the Hells Angels biker gang demonstrates, in a vast amount of documentation, a clear consistency across its sub-groups, which are designated as “chapters”. These individual groupings or chapters constitute an indissociable part of the whole—in other words, the international organization. More than once, police actions undertaken in various countries have resulted in the discovery of documents showing that chapters of the Hells Angels, located in 30 or more countries across the globe, are governed by a certain number of rules that have been adopted by their members over the years. In themselves, these rules show not only that we are dealing with a single organization, wherever it may be located in the world, but also that the individual member is part and parcel of the process, and personally participates in all the decisions made collectively by the group. Although this is not stated in their minutes of meetings, it is clear that all the members are asked to vote on criminal plans and projects, whether it is how the territories are to be divided up or murders to be committed.

Based on that reality and considering court rulings that could, at the very least, be called ambiguous, there is reason to wonder about the relevance of requiring, in cases involving members of such organizations, that an exercise intended to demonstrate the essentially criminal nature of the group's activities be repeated over and over again. In that connection, I will be pleased to answer any of the Committee's questions by providing factual examples, if the Committee deems that appropriate.

I would now like to talk about insignia and symbols of terror. The main advantage of becoming a member of a criminal biker gang is the right to wear an emblem that inspires terror.

That fact, well-known in police circles for many years now, was confirmed in a recent decision on a motion to confiscate property seized by law enforcement officers.

In his decision, the judge states that, in 2007, “the evidence clearly shows that individuals who wear them (jackets and emblems) use them as a means of intimidation, to show their connection with the Hells Angels organization, which is renowned for its strength and its violence”. That investigation, which was completed in 1997, allowed police to confiscate a building used as a fortified club house that belonged to the Hells Angels.

In criminal circles, this is a reality that the players have to deal with when they decide to get involved.

That is certainly not the case for the population as a whole. At the same time, situations have arisen that show that bikers do not hesitate to use their methods—namely, intimidation and violence—to convince any one and every one who presents an obstacle.

In Quebec in particular, that strategy has been used against individuals, merchants and business people who were competing with bikers seeking to gain a monopoly in certain legal markets.

Some cases indicate that the use of one's membership in a criminal gang, with a view to facilitating the commission of a crime, goes even further. An example of that is a sexual predator, with no known connection to the gang, who claimed to be a member of the Rock Machine in order to force his victims to remain silent.

These examples are part of only a brief overview of some of the benefits of belonging to, and identifying with, a criminal organization. Multiple incidents that have occurred in Canada lend credence to that argument. Additional details can be provided about these factual situations, if required.

On behalf of the Canadian Association of Chiefs of Police, I would like to thank Committee members for their kind attention. I am now available to take your questions.

My name is Inspector Gary Shinkaruk of the RCMP. I'm currently the officer in charge of the British Columbia outlaw motorcycle gang enforcement unit.

I spoke previously, briefly, on the scheduling of criminal organizations to the Standing Committee on Justice and Human Rights in Vancouver on April 30, 2009. I thank you for this honour and privilege to speak to you in a bit more detail on this extremely important and timely topic. I and my colleague, Detective Sergeant Len Isnor from the Ontario Provincial Police biker enforcement unit, are speaking on behalf of Criminal Intelligence Service Canada.

Honourable Justice Michael Moldaver concisely stated the following in an address to the chief justices in 2006:

With every passing day, more and more judges are voicing concerns about the length and complexity of criminal trials and the urgent need to address the problem now, before it’s too late. The concerns that they express relate to both process and substance. On the substantive side, many trial judges complain that the criminal law has taken on complexities and subtleties the likes of which are truly mind-numbing. Few feel confident in their ability to complete a criminal trial from start to finish without committing reversible error. And that, as we all know, translates into new trials and more delays and more expense and more stress on a system that is already overburdened, if not overwhelmed. My message to the Criminal Defence Bar was that the problem was not solely, or even primarily, one of their making. Rather, it was a collective one for which all of the major stakeholders bore responsibility.

Law enforcement, the justice system, and Parliament share this responsibility to appropriately and effectively respond to the threat of organized crime in Canada. The discussion of scheduling of criminal organizations is recognized by this committee, as well as by the law enforcement community, as necessary, timely, and relevant.

It must be noted that the discussion regarding criminal organization legislation is a complex issue that cannot be examined independently of the many other necessary judicial reforms that are needed. I will only be addressing the scheduling issue in my statement today.

Scheduling is not unique in Canada. For example, scheduling occurs with certain drugs in the Controlled Drugs and Substances Act. However, there is a considerable difference between the scheduling of an inanimate object--a drug--as opposed to scheduling membership in a criminal organization. Membership is an extremely complex issue, ripe for charter challenges. Considerable discussion and study is required prior to proceeding with the scheduling of any criminal organization. However, I firmly believe that in certain, albeit rare, instances, Parliament should give serious consideration to scheduling certain groups as being criminal organizations and to deeming membership to those criminal organizations as being illegal.

As an experienced investigator in the area of outlaw motorcycle gangs, I will present my recommendations using the Hells Angels as an example.

Speaking on behalf of ClSC, it is our belief, which is supported by investigations, intelligence, and our collation of evidence, that the Hells Angels are a criminal organization. Our assertion is supported by three justices' decisions.

On September 30, 2008, Justice McMahon stated, in rendering his verdict, the following:

I am satisfied beyond a reasonable doubt that the Hells Angels Motorcycle Club of Canada is a criminal organization as defined by section 467.1(1) of the Criminal Code. I am satisfied beyond a reasonable doubt that one of the main purposes or main activities of the Hells Angels Motorcycle Club of Canada is the facilitation or commission of serious offences including but not limited to trafficking in cocaine and other drugs, extortion, and trafficking in firearms. Further I am satisfied that the facilitation of these offences has resulted in the direct and indirect receipt of the material benefit by the Hells Angels Motorcycle Club in Canada and the individual Hells Angels members who have benefited.

Prior to this decision in 2007, Justice Scurfield stated, in rendering his verdict on the Hells Angels:

I am satisfied that the Crown proved that the Manitoba Chapter of this club is a criminal organization. The evidence on this point was simply overwhelming....Consequently, I am certain that the jury would have had no difficulty in concluding that the Manitoba Chapter of the Hells Angels Motorcycle Club was a criminal organization.

Prior to this decision, in 2005 Justice Fuerst stated in her reasons for judgment:

I am satisfied beyond a reasonable doubt that during the time period specified in count two of the indictment, the Hells Angels Motorcycle Club as it existed in Canada was a criminal organization.

As evidenced by these three separate court proceedings, the Hells Angels had to be proven to be a criminal organization three separate times. The evidence presented in each trial was independent of previous proceedings and evidence. The judges in each case made independent decisions based solely on the evidence of that case. It would appear that the determination of a criminal organization carries no weight outside that particular case. Further, it undermines the public's confidence in the judicial system when a group is declared a criminal organization yet is permitted to operate within Canada.

Further to my belief, there are particular situations when the evidence clearly proves that a criminal group is a criminal organization, making it undeniable to try to disprove that fact. Again using the Hells Angels as an example, I will outline major police investigations that have occurred after 2001 following the well-documented deadly drug turf war between the Hells Angels and the Rock Machine.

The biker war resulted in hundreds of violent incidents and over a hundred murders. It was the death of a young innocent youth that acted as the impetus that resulted in Parliament passing the current criminal organization legislation. Since 2001 there have been 28 major police investigations across Canada, specifically targeting members of the Hells Angels criminal organization. It is important to note that other criminal organization investigations and court proceedings have occurred, but I will only be discussing Hells Angels cases.

In the 28 investigations, 241 members of the Hells Angels were charged with various offences, including criminal organization offences. The 241 charged Hells Angels members account for nearly half of the Hells Angels active in Canada. Of the 28 investigations, 22 of the investigations resulted in criminal organization charges. As evidenced by these statistics, police investigations are making use of the legislation, demonstrating over and over that the Hells Angels and its members meet the criminal organization offence criteria.

The criminal organization court proceedings have ranged in duration from seven months to 48 months, and the average length of a court proceeding is approximately 25 months. In addition to the lengthy duration of these trials, the financial burden is also substantial, generally costing many millions of dollars. These investigations and trials are taxing law enforcement financially as well as draining human resources, due to their duration and evidentiary requirements.

The Hells Angels continue to learn from every court proceeding and adapt their methods of operation to keep ahead of law enforcement. Disclosure during court proceedings has given the Hells Angels a clear understanding of law enforcement processes, techniques, policies, and regulations. They are keenly aware of our limitations

In an attempt to proactively gather evidence required for courts, police now actively recruit members of criminal groups to work as police agents and obtain the necessary evidence to support prosecution. Police agents, while being an effective tool for law enforcement, also come with high costs. Agents require an increase in human resources during investigations, as well as incurring financial consequences. Recent investigations that have utilized agents have given awards ranging from $525,000 to $1 million. This does not include ongoing protection and witness relocation costs.

It is a costly venture for law enforcement and the taxpayer to continually present the same evidence to the courts to get the same desired outcome. The current reality is that each criminal organization ruling has no bearing on other cases. There comes a point at which the overall cost of continuously proving that the same groups are criminal organizations is increasingly hard to justify.

There is a need to continue studying the scheduling of criminal organizations. Other considerations of scheduling include making it illegal to be a member of a scheduled criminal organization. As I said, this is a very complex topic, and there is much to consider regarding regulations, including which body or bodies are able to schedule a group, the level of evidence required for a group to be scheduled, and the appropriate appeal, to name but a few of the issues.

Thank you for your time. Detective Sergeant Isnor and I will be pleased to answer any questions the committee may have.

Thank you, Mr. Chair. And thank you, members of the committee, for inviting me here today.

I have been a federal prosecutor in western Canada for almost my entire career and have handled several large organized crime cases involving street gangs, outlaw motorcycle gangs, and members of other organized crime groups. I have seen just about every type of organized crime criminal, from the unsophisticated street criminal to people in suits in office towers.

Today I'd like to give the committee some insight into how prosecutors deal with organized crime laws and the challenges they present. Because I'm in the middle of conducting several of these prosecutions for the Public Prosecution Service of Canada, I will speak in some generalities today.

The organized crime investigations we receive from the police tend to be very long investigations, often over a year in length. By the time we get them from the police, the police have spent hundreds of thousands of dollars, if not millions of dollars. The investigations tend to have lots of voluminous and complex evidence derived from wiretaps and unsavoury witnesses such as civilian agents or turncoats inside a gang.

Major organized crime investigations often lead to charges against several dozen accused. The cases typically take two or three years to get through the trial stages. Such cases often tie up at least two senior prosecutors during the investigation stage, dealing with wiretaps and other covert matters, and two or three senior prosecutors as well as junior lawyers and support staff once charges are authorized. The files are very resource-intensive for prosecutors.

We often run up against institutional capacity issues. We do not control the pace of an investigation or when it concludes, and like most things in life, timing is everything. As a result, an investigation may be ready to proceed to prosecution at a time when senior prosecutors are otherwise occupied. There are not enough prosecutors to handle these cases across Canada, both in terms of numbers and experience. Inadequate resources to deal with these cases are a reality. We currently survive by charge screening, plea bargaining, and sometimes luck. We cannot prosecute all the cases we currently receive, nor could the courts likely handle all the cases going to trial.

I have prosecuted organized crime cases under the old Bill C-95 legislation brought in 1997 and the current law based on Bill C-24 in 2001. There are two important things in common under the legislation in the last decade that I wish the committee to take into consideration. The first point is something I call gang dynamics. The second point is how much court time is spent on proving a group is a criminal organization.

First, there are the dynamics of a gang. Gang members face internal pressures that, even if the criminal organization can be proven by the crown, the accused and his lawyers won't admit the gang is a criminal organization for fear of retribution. This is not how the criminal courts typically work. Most experienced criminal defence lawyers know that wasting the court's time is a bad idea for their client; thus they admit parts of the crown's case based on disclosure and focus the trial on discrete issues. That general practice, however, does not often play out in these organized crime cases, through no fault of the defence bar.

The effect of this is to increase the cost and length of these prosecutions. Many times I have to prove the equivalent of water being wet, but that is because of gang dynamics. For some groups there is an unwritten rule that you cannot plead guilty to organized crime charges. Recently I had a case where a member of a biker group had a ten-minute trial by simply allowing the crown to read in the allegations and make no submissions against conviction. Normally that is a guilty plea, but the dynamics of the gang would not allow such a plea. Canadian law does not allow a plea of no contest, but that is effectively what we did in that case, and it took me and the defence counsel months of negotiations to come up with that solution to deal with the realities of the gang.

In terms of my second point about how costly these cases are, the law in this country requires the crown to prove each time a particular group is a criminal organization, and absent an admission by the accused, there are no shortcuts.

I wish to read you a passage of the Manitoba Court of Appeals decision in a case called Kirton, delivered on April 5, 2007, which dealt with the issue of whether a decision of a trial court in Ontario that had held that the Hells Angels were a criminal organization could be relied on by other courts in other provinces:

However, a careful reading of Lindsay leads me to the same conclusion as in Ciarniello, namely, that the findings in Lindsay are very much based on the evidence before the court in that case, and cannot be automatically applied as if it was an "in rem judgment" (at para. 67), that is to say, a finding affecting the world at large. Needless to say, a court cannot take judicial notice of the fact that the Hells Angels is a criminal organization, tempting as that might be.

That is a correct statement of the present law in Canada. And what that law means is that for each case the police must gather evidence about a particular group, which the crown presents, often taking days or weeks of court time. The crown also has to go to the expense of finding expert witnesses. An expert witness is a person with special knowledge beyond the jury, or the judge where there is no jury.

A properly qualified expert can give a court opinions. This type of witness is very important to explain to a judge or a jury how a criminal organization operates and why it meets the definition in section 467.1(1) of the Criminal Code. Practically, with organized crime groups the crown must rely on experienced police officers for their pool of expert witnesses. The problem is there are very few organized crime experts in Canada. To know a lot about these groups you have to police them for a long time. To be accepted as independent before the court you can't be involved in the particular investigation. Thus an expert witness has a short shelf life. I have found in my experience many expert witnesses are policemen at the end of their career, so the passage of time and retirement also take their toll. One of the first questions I ask the police when they bring me a potential organized crime prosecution is “who is your expert?” If they don't have one, I often say thanks, but no thanks; don't bother with criminal organization charges. The police are often upset by that advice. That's a hard choice to make, but I have to consider the broader public interest and the rights of the accused.

These cases often therefore leave the crown with being forced to prove a particular group is a criminal organization because the accused wants to save face in the gang. That requires lots of resources and experts. In a case I did two years ago involving a member of an outlaw motorcycle gang, the jury heard over a week of evidence about the gang and thousands of dollars were spent bringing in witnesses from all over Canada. That was the abridged version. My colleague who had the file before me thought that it might take a month to prove the criminal organization aspect of that case. When it came time for closing addresses to the jury, defence counsel didn't take issue with whether the particular biker group was a criminal organization, but his client could not admit that due to gang dynamics. That is a reality you need to appreciate. The dynamics of a particular gang are always going to be a backdrop in any prosecution.

I know the criminal law policy section of the Department of Justice is studying the issue of reforming the evidentiary requirements of proving a criminal organization. I wish to impress on the committee that there are no easy solutions to the current shortcomings of the law. Any reform must be designed to comply with the charter and also be flexible enough to deal with the vast array of criminal organizations, both today and over the foreseeable future.

The organized crime laws Parliament passed in the late 1990s were born of the biker conflict in Quebec. However, they also are intended for sophisticated international telemarketing fraud, stolen car rings, Ponzi schemes, and countless forms of illicit drug networks.

How Parliament deals with the evidentiary requirements of proving criminal organizations must be flexible. There are possible reforms that have been raised before, such as allowing as evidence a previous judicial finding about a particular group. Such a system would allow a judge to consider as evidence the findings of a previous judge or jury. Defence counsel could try to convince the judge not to place any weight on that prior decision. That prior decision would not bind the judge; it would just be a piece of evidence to weigh.

Another alternative is having Parliament declare that the issue of whether a group is a criminal organization is a question of law, so that at least a jury would not have to be tied up listening to such evidence for days or weeks. Such matters could be decided by a judge prior to trial under subsection 645(5) of the Criminal Code. Reserving types of issues for judges only is already part of our criminal law for difficult questions like attempts.

Reforms can be tailored to ensure a fair process to accused persons to withstand judicial scrutiny under section 7 and paragraph 11(d) of the charter. Any reform will breed litigation for those on the front lines, as members of criminal organizations will resist any attempts to threaten their livelihoods.

The practical reality today is that many prosecutors deal with the current state of the law by advising the police to keep their organized crime investigations small and keep them simple. A one-week investigation where you can put a covert camera in someone's house to watch them packaging drugs and then arrest two to three gang members is often far more effective than two years of wiretaps and the possibility of 50 accused. The latter type of case may collapse under its own weight, which is what we want to avoid. Not every police investigation needs to be a re-creation of the Normandy invasion in 1944. A small commando-type raid will often do the trick.

Thank you for inviting me to speak to the committee today. I would like to acknowledge the assistance of the David Asper Centre for Constitutional Rights, and in particular Kerry Liu, a law student at the University of Toronto faculty of law, who assisted with research for this presentation.

I want to start with an acknowledgment that organized crime is a serious problem. As you've heard today, there have been serious obstacles with many organized crime trials in many parts of Canada. It is imperative that the criminal justice system be able to prosecute and punish organized crime.

That said, I do not believe that the listing of organized crime groups will be an effective, practical, or constitutional means of shortening organized crime trials. It could start a process in which novel concepts that were adopted in the terrorism context will start to seep in and arguably infect other areas of the criminal law.

First, let's start with some background. The processes for listing terrorist groups are provided in section 83.05—

As I was saying, the provisions in sections 83.05 to 83.07 of the Criminal Code, which provide for the listing of terrorist groups, were enacted in 2001 as part of the ATA to comply with UN Security Council resolution 1373. They construct an elaborate structure for the cabinet, on recommendation of the Minister of Public Safety, to list terrorist groups, with reviews every two years. They also provide for the protection of secret intelligence used to support the listing and for judicial review of the listing in Federal Court.

In theory, groups can challenge the listing after it's made, but this has not been done by the 40-odd terrorist groups that are currently listed. So the ability to bring a judicial review application for listing has proved to be somewhat illusory. Indeed, it might not be too much of a stretch to say that if a group wanted to challenge the listing, the challenge itself might be seen as evidence of participation in the activities of a terrorist group or criminal organization. It might be thought that the challenge was brought in order to enhance the ability of the group to commit a crime. In the Criminal Code, these are crimes under sections 83.18 and 467.11—for terrorism and organized crime, respectively.

From the state's perspective, a challenge to a listing decision could expose general intelligence about a criminal organization. If the Hells Angels or another group were listed as a criminal organization, the intelligence that would support that could be exposed through judicial review. Under section 467.1, however, a prosecutor could choose to define a criminal organization fairly narrowly. A criminal organization is defined as any group of three or more persons that has as one of its main purposes or activities the commission of serious offences.

So even if listing were desirable, I'm not sure that it would be practicable or advantageous from the state's perspective. You have to recognize that the definition of “criminal organization” is so broad that it can encompass almost all criminal conspiracies, and any list of organized crime groups could be an administrative nightmare. It would either be excessively long or under-inclusive. Listing is always going to lag behind developments on the ground and the permutations of organized crime. Indeed, this has been the case even in the terrorism context. There are fewer terrorist groups than there are organized crime groups. In both the Khawaja case and the ongoing Toronto terrorism prosecution, prosecutors have not been able to rely on the listing decisions under sections 83.05 to 83.07, so the indictments in both of those cases allege an ad hoc group, essentially the criminal conspiracy. I think the same might occur if criminal organizations were listed.

It is inevitable that a listing provision will be challenged under the charter. I'll say something about the merit of that challenge later, but why give defence lawyers another target, especially when, to judge by the Lindsay case and the Terezakis case, the developing consensus in the case law is that the existing provisions are constitutional. To introduce something that is only going to attract charter challenges could actually prolong criminal trials.

Similarly, I think there's a danger here of fragmenting criminal trials. Let's say that you list a criminal organization à la the terrorist group model. Does this mean that the criminal trial will have to be held in abeyance while that group challenges the listing provisions in the Federal Court? Generally, it's not desirable to fragment criminal trials.

So let's come to the merits of a charter analysis. I actually think that listing probably could be upheld as a reasonable limit on freedom of association, given that there would be no immediate consequences that would follow from the listing. Courts might, however, look at alternatives under the proportionality test, alternative means that are less rights-evasive, to deal with the problems of trial delay and trial complexity. To me, that is really the issue we're talking about: trial delay and trial complexity.

I would even go so far as to say that listing might also be upheld under section 7 of the charter if there were regular judicial reviews. Nevertheless, these reviews will be ex post, and some thought should be given to allowing ex ante challenges before the listing is made.

It seems to me that the most serious charter concern with listing is that I think it may very well violate the presumption of innocence in section 11(d) of the charter. What listing would do is essentially substitute a cabinet decision that a criminal organization is a criminal organization for proof beyond a reasonable doubt of an essential element of a crime, if the crime involves a criminal organization as an enhancement.

The Supreme Court of Canada has, in cases such as Regina v. Whyte, 1988, 2 Supreme Court Ruling 3, held that the substitution of one element of an offence for another element of the offence will violate the presumption of innocence unless the essential element follows inexorably from proof of the substituted element. In English, what I'm trying to say is that listing would be an administrative shortcut around proving an essential element of the criminal offence.

Indeed, we even find this in our sentencing jurisprudence. As you know, even if a criminal offence is not charged, the fact that a crime was committed for the benefit or at the direction of or in association with a criminal organization is rightly deemed to be an aggravating factor in sentencing. But under paragraph 724(3)(e)--and this has been the law since Justice Dickson articulated it in the Gardiner case in 1982--the prosecutor has to establish beyond a reasonable doubt such aggravating factors. So it seems to me that listing would be a legislative and executive shortcut around the reasonable doubt proposition, which is a fundamental element of our Criminal Code.

Finally, I would suggest that listing is a practice that challenges the separation of powers we've long had in our democracy, and I don't think it should be expanded beyond the terrorism context. Listing fuses together legislative powers, executive powers, and judicial powers. Essentially, listing allows the cabinet to take an issue away from the trial and to deem that an essential element of the criminal offence has been established. There are some dangers that wrongful listing will not be undone by judicial review. There has been at least one example in Canada of an individual being wrongfully listed under the UN Act regulations.

Finally, I would suggest that listing would represent a seepage of anti-terrorism law into the criminal law. We're not here to debate the ATA, but I think it is important to remember that this is how the right to silence was undermined in the United Kingdom. Parliament first made an exception to the right to silence in the terrorism context, and it then spread to the rest of the criminal law. For that reason, I have concerns about the spreading of the listing concept.

Having said that, I think the problems that police representatives have identified of complex, lengthy trials in the organized crime context are very real problems, and I agree with them that there is a problem. But it seems to me there are many other remedies we can look at rather than listing, and that listing might turn out to be cosmetic and problematic.

Some of those remedies have recently been recommended in Ontario by Justices LeSage and Code. They include real powers for pre-trial judges to make rulings that will be binding on the trial judge; enhanced severance powers that would allow binding rulings on criminal organizations or on a wiretap issue to be made and then the subsequent conspiracy to be severed out into smaller and more manageable trials; improvements for electronic disclosure; and improvements in electronic surveillance and witness protection.

I would submit that these are some of the bread-and-butter issues, not listing, which I fear may not be practical and will for sure be challenged under the charter and will strain our traditional idea of the separation of powers between the judiciary, the legislature, and the executive.